China: Urgent Need to Revive Legal ReformCarl Minzner in Human Rights Watch, October 30, 2013
A decade-long retreat from the official legal reform efforts of the late 20th century risks exacerbating conflicts between Chinese society and the new leadership, Professor Carl Minzner of Fordham Law School writes in the second essay of a series on China's legal reforms published today by Human Rights Watch.
"Three decades of legal reform and positive signs, like the proposed abolition of some forms of arbitrary detention, had significantly raised expectations for the rule of law in China," said Sophie Richardson, China director. "But senior leaders have come to view the very institutions designed to resolve rising social grievances as threats, and have chosen to let reform wither on the vine."
In an 11-page essay, "China's Turn Against Law," Minzner details the growth of channels for redress of civil and administrative grievances from the late 1970s through the late 1990s, including the increased reliance on legal rules instead of ideological campaigns, a movement away from mediation led by Party activists toward court proceedings, the professionalization of the Chinese judiciary, and the recognition of a role for the Chinese bar in resolving disputes. The piece argues that these initiatives successfully steered citizen grievances towards new channels, but the failure of the state to deepen political and legal reforms led citizens to become disillusioned with them. State authorities also became disenchanted as they believed that legal reforms had unleashed demands for greater changes that would undermine the Party's grip on power.
The piece then addresses efforts by the state to undo many late 20th century legal reforms, by re-asserting controls over legal organs via political campaigns, reviving Maoist-era mediation mechanisms, reversing efforts to professionalize the judiciary, and tasking state security organs with maintaining social stability through repression and burying underlying grievances.
Minzner notes that the combination of the state turn against its own legal reform efforts, coupled with heightened official concerns regarding social unrest, have left many in China believing that legal avenues are effectively closed to them and only alternative channels including direct confrontations can get officials to take notice.
Upon assuming power Xi Jinping promised greater checks on the Party and the government, stating that "power should be restricted by the cage of regulations." But an emphasis on Maoist "mass-line" campaigns and extra-judicial resolution of social conflicts, as well as a renewed effort to suppress rights activists and government critics cast doubts about how committed to legal reform the new leadership really is.
"Professor Minzner makes a powerful case that when people in China think justice can be had through a court they will pursue that option in extraordinary numbers," said Richardson. "On the contrary, when that system appears to respond only to internal Party directives or street protests, it's the prospect of social unrest that increases."